Archive for the ‘Probate’ Category
Oklahoma estate planning tools: the Durable Power of Attorney
Today’s “Tools” post is the “Durable Power of Attorney.”
A durable power of attorney is a simple power of attorney which gives the attorney-in-fact (the person to whom power is given) the power to act for you. It is “durable” in that it is written in conformity with statutes which allow it to continue beyond the time you become incompetent or have a mental incapacity (if a power of attorney does NOT contain appropriate language to make it durable, it terminates at the time you become incompetent).
The benefit of having a Oklahoma durable power of attorney is that in the event of an incompetency, a guardianship should not have to be opened with the probate court to administer your property. A power of attorney, when properly drawn, also serves the purposes of allowing the attorney-in-fact (1) to act during periods when you are on extended travel and (2) to transfer non-trust assets to your primary trust during disability or prior to your death, when you are not otherwise capable of making the transfer yourself.
If done correctly, the durable power of attorney should prevent you family from having to go to court to have a guardian appointed for you. This means you save on the expense and potential battle between people who each think they should be the guardian.
If you have questions about a living will or any other estate planning issues, please feel free to contact me and to find out more about estate planning listen to my podcast “Estate Planning Demystified“.
Oklahoma Estate Planning Tools: the Last Will and Testament
Todays “Tools” post is about the Oklahoma Last Will and Testament. Simply summed up, the Last Will and Testament is . . .
your written decisions on who to give your property to, who will manage the process of giving away your property, in writing and signed and witnessed according to Oklahoma law so that it is legal and binding.
The Will is created while you are alive to control what happens to your things once you have passed away. If you do not have a Will in Oklahoma, the State of Oklahoma decides how your things will be distributed. The distribution might not always turn out like you would expect it to. You can read more about that here.
If a trust is used, you still need a Will. Your Will is a simple document, which would have any probate property transferred to your trust. This Will is often described as a “pour-over will” because any property that is not already in the trust at the time of death pours-over to the trust. Probate property is your property which for some reason is not held in either of your trusts or which does not transfer outside of probate (such as by joint tenancy).
Check back for the next post on Oklahoma estate planning titled “The Last Will and Testament” and to find out more about estate planning listen to my podcast “Estate Planning Demystified“.
Oklahoma Estate Planning Tools: the Living Trust
This is the first installment in a series of titled “What are the tools used in Oklahoma Estate Planning?”
Today, we start with the Living Trust.
The living trust is also know as a “revocable trust” a “revocable living trust”, an “inter vivos trust”. What is a trust? Simply put,
A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. With the revocable living trust, you can be the trustee of your own trust, you keep complete control over all property held in trust but get the benefits of the law treating the trust as a separate legal entity.
The advantage of having all of your assets held by a revocable trust at the time of your death, or at the time of your disability or incapacity are:
- Elimination of the probate process. This means that there would not be any court oversight of your estate. Since there would be no Court filings, there would be no public access to, and/or knowledge of, your assets and their value. Additionally, eliminating Court oversight would avoid the expense and delay associated with having assets administered by the probate process.
- Immediate and continuous access to assets and to cash flow. Without a revocable trust (or other appropriate estate planning device), assets would have to flow through the probate process. If assets flow through the probate process, access to assets and to cash flow is usually delayed due to the need to obtain Court permission.
- Protecting your assets and providing a continuous cash flow in the event you become mentally or physically disabled or incapacitated prior to your death (where the disability or incapacity prevents you from administering your own assets).
- Reduces the burden on the children and other family to search and gather assets after death.
- Provides the opportunity to gather and index all your financial documents together; that way your family will know what accounts you have and where.
- Reduces the chance of contest to your estate plan because it eliminates the chance for a will contest since the trust is the primary vehicle for managing and transferring property.
Check back for the next post on Oklahoma estate planning titled “The Last Will and Testament” and to find out more about estate planning listen to my podcast “Estate Planning Demystified“.
Why an Oklahoma living will is a necessity for your family
If you recall from the early part of this century, there was a huge legal battle in Florida over whether a poor woman named Terri Schaivo would be kept alive through artificial means (feeding tube) or allowed to pass away. Her husband, who was estranged from her family wanted her to pass away, her family wanted her to remain alive through artificial means. The result was 10 years of litigation, $100,000.00 of dollars in legal fees and unmeasurable pain for the family. A court ultimately decided Ms. Schaivo should be allowed to pass away.
There is a way to prevent this type of battle. In Oklahoma, it is done through an Advance Directive (living will). This document allows you make decisions about how your end-of-life are is handled and appoint a person you trust to help the doctors carry out your decisions. Most other states have the same type of living will provisions.
If the living will is done properly, the doctors, hospital and family are required to follow it:
A physician or other health care provider who is furnished the original or a photocopy of the advance directive shall make it a part of the declarant’s medical record and, if unwilling to comply with the advance directive, promptly so advise the declarant.
If you have questions about an Oklahoma living will or any other estate planning issues, please feel free to contact me and to find out more about estate planning listen to my podcast “Estate Planning Demystified“.
Key questions to ask when doing your Oklahoma estate planning
Below are some of the key questions to ask when thinking about doing your Oklahoma estate planning:
• Who are you planning for? (self, spouse, children, grandchildren, parents, business associates, friends, charities)
• What do you have to plan with? (assets & liabilities)
• What plans have you already made? (existing contracts, will, other documents)
• How does the system work? (probate, federal and state transfer taxes)
• Who are you planning with? (The estate planning team of accountant, financial planner, attorney, life insurance advisor, trust officer)
You can find out more about Oklahoma estate planning by listening to my podcast series “Estate Planning Demystified here.
Oklahoma Probate: marital vs. separate property
While it comes up in the divorce setting, the “marital” versus “separate” property question also arises after someone dies. Most often it happens when the marriage was the second for at least one spouse and there are children from a previous marriage. What are the basics of marital versus separate property:
Marital property generally is property purchased during marriage, with marital funds or property that the couple chooses to treat as marital property.
Separate property generally is property owned by a spouse before marriage which retains its separate status during marriage because it is maintained as spouse’s individual property in uncommingled state.
Separate property does not mean only “owned before marriage” it can be other things, as the examples below show. Moreover, not all property acquired during a marriage by either spouse is automatically considered “marital property.” To give you some examples, when Oklahoma courts looks at this issue, they have found “separate” property in at least these areas:
(1) property owned by a spouse prior to the marriage, which retained its separate status during the marriage because it was maintained as separate property,
(2) gifts to one spouse from a third-party during the marriage and gifts from one spouse to the other spouse, during the marriage,
(3) descents or devises to one spouse during the marriage, maintained as separate property,
(4) an exchange, during the marriage, of property in which the owning spouse exchanges separate property for other separate property,
(5) the owning spouse’s purchase of other property with his/her separate funds during the marriage,
(6) compensation received by one spouse for personal injury.
What a surviving spouse gets under the law
In an Oklahoma statute that is equal parts interesting and antiquated, the surviving spouse is entitled to get all of the following items after death of the first spouse:
1. All family pictures.
2. A pew or other sitting in any house of worship.
3. A lot or lots in any burial ground.
4. The family Bible and all school books used by the family, and all other books used as part of the family library, not exceeding in value of One Hundred Dollars ($100.00).
5. All wearing apparel and clothing of the decedent and his family.
6. The provisions for the family necessary for one (1) year’s supply, either provided or growing, or both; and fuel necessary for one (1) year.
7. All household and kitchen furniture, including stoves, beds, bedsteads and bedding.
These are not the only things the surviving spouse is entitled to, but some of the items that the Oklahoma Legislature considered important.
Source: Title 58, Section 311.
Oklahoma Estate Planning
6 ways to avoid Oklahoma probate after death – the Series
I counsel people who desire to avoid probate to take the necessary steps now to get it done. Usually, that means creating a living trust and/or re-titling real property. However, I know from experience that things are not always done before death.
For that reason, I put together a six blog post series 6 ways to avoid Oklahoma probate after death about steps you can take following someone’s death to avoid Oklahoma probate while at the same time getting to the property. You can find all the posts here on the blog but I am also providing the collection and links to each post below:
#1 Way to avoid Oklahoma probate after death – Small Estate Affidavit
#2 Way to Avoid Oklahoma probate after death – life estate or joint tenancy
#4 Way to avoid Oklahoma probate after death – Government death benefits
#5 Way to Avoid Oklahoma probate after Death: Vehicles, Boats, Motors
#6 Way to avoid Oklahoma probate after death – Unclaimed Property
If you have questions about Oklahoma probate or transferring assets in Oklahoma after someone has died, please feel free to contact me at sjr@shawnjroberts.com
#6 Way to avoid Oklahoma probate after death – Unclaimed Property
#6 Ways to Avoid Probate after Death: Unclaimed Property
This is the first article in the series 6 Ways to Avoid Oklahoma Probate after Death.
This is a somewhat indirect route to obtain property left behind by someone who has died. The Oklahoma State Treasurer collects and administers property that is “unclaimed.” The State Treasurer is authorized to turn over unclaimed property of up to $10,000.00 in value, afte receiving an affidavit signed by the claimant “stating that the claimant is entitled to receive such property, the reason the claimant is entitled to receive such property, that there has been no probate of the estate of the deceased owner, that no such probate is contemplated and that claimant will indemnify the State for any loss, including attorneys fees, should another claimant assert a prior right to the property.”
I provide Oklahoma probate and estate planning services in Edmond, Oklahoma City and the Metro area. If you want to discuss this article or anything about probate or transfer of assets of please feel free to email me at sjr@shawnjroberts.com.
#5 Way to avoid probate after death – Vehicles/Boats/Motors
#5 Way to Avoid Probate after Death: Vehicles, Boats, Motors
Although these may seem like small, somewhat less significant items, when you need to change title on a vehicle, boat or motor, this process is very useful.
The “No Administrator Affidavit” is made available by the Motor Vehicle Division of the Oklahoma Tax Commission through tag agencies across the state. By completing the require form (found here) and supplying a certified copy of the death certificate, the survivor may obtain title to a vehicle, boat or outboard motor where there is no probate or administration proceeding and no other person would have a prior right to have the property.
I provide probate and estate planning services in Edmond, Oklahoma City and the Metro area. If you want to discuss this article or anything about probate or transfer of assets of please feel free to email me at sjr@shawnjroberts.com.
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